Lower Crack Sentences to Apply Retroactively

By

Gary Fields

July 1, 2011

Thousands of prisoners serving time for crack cocaine could have their sentences trimmed by several years after the U.S. Sentencing Commission voted Thursday to retroactively apply a law easing penalties for possession of the drug.

Inmates sentenced as far back as 1991 for crack crimes will be able to apply for reduced sentences. The 6-0 vote by the panel that sets sentencing guidelines used by federal judges could affect as many as 12,040 inmates, according to the commission.

The commission's decision goes into effect Nov. 1 unless Congress moves to stop it. Some lawmakers oppose retroactivity, a debate that goes to the heart of what Congress intended when it rewrote the crack laws in 2010.

In a recent letter to Commission Chairwoman Patti Saris, 13 Republican House and Senate lawmakers said, "It is not titled The Fair Sentencing Act for All Years. As we noted in our last letter to the Commission, the Fair Sentencing Act of 2010 makes no mention of retroactivity. That is by design."

Rep. Louie Gohmert (R., Texas), one of the members who signed that letter, said in an interview Thursday that lawmakers had made clear what they intended with the new law, only to have it ignored. "I think it's outrageous what they've done."

Sen. Charles Grassley (R., Iowa) and the ranking member of the Senate Judiciary Committee said the Sentencing Commission's "complete disregard for congressional intent is upsetting and offensive."

Mr. Grassley said the unelected commission "took matters into its own hands" and directly contradicted the wishes of Congress. "Unless the commission's rule-making authority starts complementing rather than contradicting the will of Congress, we're going to need to take a good look at what the future of the commission is."

Under the old law, a defendant faced a minimum five-year sentence if convicted of possessing at least five grams of crack. Possession of 50 grams brought a minimum of 10 years. It took 500 grams and 5,000 grams, respectively, of powder cocaine to bring the same sentences. The law was designed to address violence in urban areas and a belief that crack was more addictive than powder cocaine.

Over the years, the old disparity led to charges of racism, and research disproved the notion that crack was more addictive. Most people serving time for crack are black, while those serving time for powder-cocaine charges tend to be white or Hispanic. The new law raised the trigger amount for a five-year sentence to 28 grams of crack cocaine. The 10-year trigger is 280 grams of crack cocaine. The powder cocaine penalties remained the same.

Commission Vice Chairman William Carr Jr., a former federal prosecutor, said voting against retroactivity after Congress's move last year would be "unconscionable."

The Commission had to create new guidelines to fall in line with the new mandatory minimums. Attorney General Eric Holder said in June that the Obama administration supported the reduced penalties for non-dangerous offenders already in prison.

His comments marked the first public statements on the administration's position on how past crack-cocaine defendants should be handled since the Fair Sentencing Act was signed into law last August.

The commission's action "does not mean defendants are free to leave prison immediately," said Ms. Saris, the commission chairwoman and a federal District Court judge in Massachusetts.

Reduced sentences would have to be approved by a federal judge on a case-by-case basis. Judges would consider such factors as whether a prisoner was deemed dangerous or has been rehabilitated. The average sentence would be reduced from about 13½ years to 10½ years, the commission said.

Thursday's vote marks the second time in four years the Commission has voted to apply reduced crack penalties retroactively. In 2007 it made guideline changes that reduced penalties on crack defendants. More than one-third of the 25,515 inmates who sought reduced sentences were rejected.

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